England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30th March 2011

1. LORD JUSTICE SULLIVAN: This is a prosecutor's appeal by case stated against the decision of District Judge Bayne sitting at the South Western Magistrates' Court on 11 June 2010 that the interested party was not guilty of displaying advertisements at 64 Battersea Rise, London SW11 ("the site") on five separate dates between June and November 2009 without consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ("the regulations") contrary to section 224(3) of the Town and Country Planning Act 1990 ("the Act").
2. It was common ground that there was no express consent for the display of advertisements at the site. The interested party contended that the advertisements did have the benefit of a deemed content because they fell within class 13 in schedule 3 to the regulations. Class 13 is concerned with:

"Advertisements on sites used for the preceding 10 years for display of advertisements without express content."

3. Deemed consent is granted under class 13 for:

"an advertisement displayed on a site that has been used continually for the preceding 10 years for the display of advertisements without express consent."

4. However, that consent is subject to a number of conditions. The first of which is material for present purposes and is as follows:

"1. An advertisement does not fall within this description if, during the relevant 10-year period, there has been either a material increase in the extent to which the site is being used for the display of advertisements or a material alteration in the manner in which it has been so used."

5. The 10-year period for the purposes of class 13 ran from June 1999 to June 2009. Although the five dates spanned the period between June and November 2009, the case refers to a period between November 1999 and November 2009. The difference is of no significance for present purposes.
6. The interested party produced evidence that there had been advertisements in some form or other displayed at the site since 1939. The District Judge said that the evidence in respect of the 10-year period was as follows:

"With regard to the relevant period, there was no evidence of what was specifically displayed between November 1999 and December 2001, but Mr Wignall [a director of the company which owns the site] gave uncontested evidence that he was fairly sure that there had been a 3 metres by 6 metres 48 sheet hoarding displayed from the late 1970s until there was a change some time in 2001 for a brief period to a 3 metres by 3 metres hoarding. There was photographic evidence to show that in December 2001 and February 2002 a hoarding measuring 3 metres by 3 metres was displayed.

Mr Wignall gave evidence that he was aware that this hoarding was changed back to a 3 metre by 6 metre 48 sheet hoarding in 2003 when he entered into a new agreement with another advertising company. With the exception of a very brief period in January 2005 when nothing was displayed whilst structural repairs were carried out, this remained the case when the interested party took over the site. There was photographic evidence to show that by May 2005 at least the advertisement hoarding was illuminated by external lighting. The photographs show that the surrounding area is an urban area and that there is a bright street light right next to the hoarding."

7. The District Judge concluded:

"On the evidence that I was provided with I was satisfied that there had been advertisements in some form or other displayed on the site since 1939. I was satisfied that the advertising hoarding in question was displayed on the site that had been continually in use for a 10-year period prior to the dates alleged and the offences charged. I was satisfied that the shape of the hoarding had changed during the relevant period, both in size and shape. I found that during the relevant period the hoarding changed from a 3-metre by 6 metre 48 sheet hoarding to a 3 metre by 3 metre square hoarding and back again, but I was not persuaded that this constituted a material increase in the extent of the use of the site for advertisements, as use remained confined to one hoarding. I found as a fact that simply changing the shape and size of the hoarding does not alter the use of the site per se, nor does it alter the extent of the use of the site.

In considering whether there had been a material alteration to the display by the change from external to internal illumination, I directed myself in particular to the decision of the High Court in R(Clear Channel UK) v London Borough of Hammersmith and Fulham and considered whether in this particular case where there was no evidence of any safety issue there had been an alteration that was capable of having an adverse effect on amenity. I found as a fact that internal illumination will result in a brighter display. The evidence was that the hoarding in question was a static 48 sheet display. Unlike the advertisement that was the subject of the Clear Channel v London Borough of Hammersmith and Fulham case, however, the lighting remains constant and there is no change of light intensity every few seconds. I found this to be a significant issue and material to my decision.

I was not provided with any technical or expert evidence to establish the effects of any change from external to internal illumination and was asked to rely upon the personal opinion of Miss Ball [a planning officer employed by the appellant Council] alone and a set of poor quality photographs taken from the inside of an adjoining property. I found that the site is in an urban area with a bright street light immediately beside it. I was not satisfied on the evidence that a change from external lighting to internal lighting constituted a material alteration that adversely affects the amenity of the area. I found that the advertisements in question had the benefit of deemed consent under class 13 of the Regulations and I found the interested party not guilty in respect of each matter."

8. The District Judge posed three questions for the opinion of this court:

"1. Having found that during the relevant period the hoarding changed from a 3-metre by 6 metre 48 sheet hoarding to a 3 metre by 3 metre square hoarding and then back again did I did err in finding that there was no material increase in the extent of the use of the sight for advertisements?

2. Did I err in finding that the applicant had failed to prove that the change in the method of lighting was a material alteration?

3. If this question is answered in the affirmative did I err in treating the question of whether the change in the method of lighting was a material alteration which the applicant had to prove for the interested party to be convicted?"

9. On behalf of the appellant, Mr Turney submitted that once it was established that the advertisements were being displayed on the site in November 2009 and that there was no express consent for that display, then the onus was on the interested party to produce evidence from which the District Judge could properly conclude on the balance of probability that the requirements of class 13 were satisfied. See R v O'Brien and Hertsmere Borough Council [1997] 74 Planning and Compensation Reports 264 per Rose LJ at page 268.
10. In the present case, Mr Turney submitted that the interested party's failure to adduce evidence of the extent of the display between November 1999 and December 2001 should have been fatal to the interested party's case.
11. In my judgment the District Judge was entitled to be satisfied on the basis of Mr Wignall's evidence that he (Mr Wignall) was "fairly" sure that there had been a 3-metre by 6-metre hoarding from the late 1970s until some time in 2001 when there was a change to a 3-metre by 3-metre hoarding that the evidential burden on the interested party had been discharged. However, Mr Wignall's evidence that there was a 3-metre by 3-metre hoarding displayed on the site from "some time in 2001" until some unspecified time in 2003 leads to the inevitable conclusion, in my view, that during the 10-year period there was a material increase in the extent to which the site was used for the display of advertisements. The period during which the 3-metre by 3-metre hoarding was displayed, for about 2 years, was not a temporary period such as, for example, the brief period in 2005 when structural repairs were being carried out.
12. The interested party was legally represented before the District Judge. Before us this afternoon it has been represented by Mr Johnson, one of the company's two directors. Mr Johnson has provided us with a witness statement in which he says, amongst other things, that if there was to be a strict interpretation of the phrase "material alteration" in the conditions to class 13, then it would be virtually impossible for any modernisation to take place at any long established advertisements site. That is because the size of the hoardings may well be altered if modernisation takes place.
13. That is true, but it is not every alteration in size that will be material. The question for the purposes of class 13 is whether there has, during the relevant 10-year period, been a material increase in the extent to which the site has been used for the display of advertisements.
14. I would readily accept Mr Johnson's submission, and the District Judge's conclusion, that simply changing the shape and size of a hoarding does not per se alter the use of a site. However, I am unable to accept the District Judge's conclusion that doubling the size of this hoarding from 9 square metres to 18 square metres at some time in 2003 was not a material increase in the extent to which the site was used for the display of advertisements. Whatever leeway might be allowed by way of a non-material increase in the size of a hoarding during the course of modernisation of a display, doubling the size of a display has, on any basis, to be a material increase in the extent to which a site is used for the display of advertisements. I would therefore answer question one in the case stated in the affirmative.
15. That is sufficient to dispose of this appeal in the appellant's favour, because all of the conditions in class 13 must be met. However, I would also answer question two in the case stated in the affirmative because it was not for the District Judge to decide whether the change from external lighting to internal lighting "constituted a material alteration that adversely affects the amenity of the area".
16. The District Judge had earlier referred to the decision of Irwin J in the case of R(Clear Channel UK) v the London Borough of Hammersmith and Fulham [2009] EWHC 465 (Admin). In paragraph 12 of his judgment in this case, which was approved on this point in the Court of Appeal (see EWCA (Civ) 2142 per Moore-Bick LJ at paragraphs 8 to 15). Irwin J said that the question for the purpose of regulation 13 was not whether the alteration had an adverse effect on amenity, but whether it was capable of having such an effect. Having referred to the correct test, the District Judge unfortunately answered the wrong question; did the alteration adversely affect the amenity of the area. Views may differ as to whether a material alteration is harmful, neutral or beneficial in terms of amenity. An alteration may still be material even if it has a beneficial effect on amenity.
17. It must be emphasised that the question for the District Judge was not whether consent for this advertisement should be given, but whether consent for the display was required. I mention this because, understandably, Mr Johnson in his statement makes it clear that he and indeed Mr Wignall both feel very strongly that the advertisements on the site have been there for a long time and they do no harm, and they make the point that there have been no objections to them. All of those points may well be good reasons as to why consent should be granted under the regulations, but that is not the issue which is before us and it was not the issue which was before the District Judge.
18. I should also mention in this connection that Mr Johnson made the point that the advertisements on this site were illuminated on 6 April 2007. Such an argument would have been relevant if the appellant had been contending that there had been a breach of condition three in class 13, but that was not being alleged by the appellant; what was in issue was the change in the manner of illumination, and there was no doubt that there had been a change in the manner of illumination. The question was whether that change was a material alteration in the manner in which the site was being used for the display of advertisements.
19. In view of my answers to questions one and two it is strictly unnecessary to answer question three, but it does raise an issue of wider importance. The District Judge stated that she had not been provided with any technical or expert evidence to establish the effects of any change from external to internal illumination and had been asked to rely on the personal opinion of Miss Ball, the planning officer, alone, together with a set of poor quality photographs taken from the inside of an adjoining property. It would appear from that observation that the District Judge thought that the appellant was under some kind of obligation to produce technical or expert lighting evidence. In my judgment that was not the case, and I would answer the third question in the case stated in the affirmative in the light of the decision of the Divisional Court in O'Brien (see above). It was for the interested party, who was alleging that there was deemed consent, to produce evidence that the conditions in class 13 were complied with because the change from external to internal illumination was not a material alteration, that is to say that it was not an alteration which was capable of having an adverse effect on amenity or public safety. It was not for the appellant to prove that the change was a material one as defined by Clear Channel (see above), much less was it for the appellant to prove that the change had adversely affected the amenity of the area.
20. Had the sole question been whether the change from external to internal lighting was capable of having an adverse effect on amenity, I would have remitted the case to the District Judge for her to answer that question. However, in view of my answer to question one (above) there is, in my judgment, despite the submissions of Mr Johnson, no basis on which it could reasonably be concluded that there was a deemed consent for this display.
21. For my part, therefore, I would allow the appeal and remit the matter to the District Judge with a direction to convict the interested party. I would, however, add this: Mr Johnson's evidence makes it clear that this was not a case where the interested party was deliberately flouting the regulations. The interested party had respectable grounds for believing that it did have the benefit of deemed consent for this display. The fact that, for the reasons set out above, I have not been able to accept those grounds does not mean that the interested party's belief that it had deemed consent was anything other than a genuinely held belief.
22. MR JUSTICE TREACY: I agree.
23. LORD JUSTICE SULLIVAN: So, it follows, Mr Turney, that the appeal is allowed and the matter is remitted to the District Judge with a direction to convict.
24. MR TURNEY: My Lord, I am very grateful. My Lord, your last reference to O'Brien, I think he referred to O'Brien in the District Court rather than the Divisional Court. I wonder for the shorthand writer --
25. LORD JUSTICE SULLIVAN: Deary me. Rewrite history, please, shorthand writer -- in the Divisional Court.
26. MR TURNEY: Other than that, there are no further applications.
27. LORD JUSTICE SULLIVAN: No further applications? I am grateful to hear that.